CCJE – Opinion NO. 18 (2015) on “The position of the judiciary and its relation with the other powers of state in a modern democracy”

January 22nd, 2016 § 0 comments

Opinion NO. 18 was prepared by the Consultative Council of European Judges (CCJE) on the basis of previous CCJE Opinions, the CCJE Magna Charta of Judges (2010), and relevant instruments of the Council of Europe, in particular the European Charter on the Statute for Judges (1998), and Recommendation CM/Rec(2010)12 of the Committee of Ministers on judges: independence, efficiency and responsibilities.

The reason for adopting this Opinion is that there have been a number of conflicts and tensions in recent years between the three powers of the state (legislative, executive and judicial).

For example, in some member states, the executive exercises considerable influence over the administration of the judiciary, thereby bringing into question the institutional independence of the judiciary and the independence of individual judges. Other concerns are economic crises leading to chronic underfunding of the judicial system in several member states, a lack of legislation or (at the other extreme) rapidly changing legislation. In addition, politicians and the media have suggested that judiciaries are not sufficiently “accountable” to society.

Therefore, the Consultative Council of European Judges (CCJE) resolved to reflect upon the legitimacy and accountability of the judiciary and the proper relationship between the three powers of state in a modern democracy and their responsibilities towards not only one another but also to society in general in the 21st century. To this effect they issued Opinion NO. 18.

This Opinion examines the following questions:

“i. What relationship should there be between the judicial power of a state and the legislative and the executive powers?

ii. On what bases do judiciaries establish their right to act as such in a democratic society? How is the “legitimacy” of judicial power demonstrated?

iii. To what extent and in what ways should judiciaries be accountable to the societies they serve and to the other powers of the state?

iv. How can the three powers of the state exercise their respective authority in such a way as to achieve and maintain a proper balance between themselves and also act in the interest of the society they all serve?”

The full text of Opinion NO. 18 can be read here.

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